Conviction Affirmed, Sentence Vacated, In Crack Possession Case

US v. Herder: Herder was confronted in a parking lot by an officer who had followed his vehicle from a "park and ride" commuter lot known for drug activity. Herder's driving was suspicious because it was "overcautious" - "keeping under the speed limit and signalling well in advance of turns." Herder consented to a search of his car, which uncovered 21 bags of crack cocaine and some marijuana in false bottom containers. Herder was in possession of more than $1000 in cash. He was charged with possession of marijuana and more than five grams of crack, both with intent to distribute. He was convicted on both counts, although the jury found only 3.8 grams of crack were involved, at trial and sentenced to 41 months prison and the forfeiture of the cash in his possession at the time of his arrest.

On appeal, Herder challenged his convictions, sentence, and order of forfeiture. The Fourth Circuit affirmed his convictions and order of forfeiture, while vacating the sentence. As to the convictions, Herder made two arguments. First, he argued that the evidence was not sufficient to establish that he knowingly possessed the drugs found in his car. At trial, Herder presented testimony from his fiance that the car was used to make deliveries for their T-shirt business and, as a result, collects a lot of "junk" and that he had made such a delivery shortly before the search. The court rejected that argument, calling the evidence "more than ample" to sustain the convictions. Second, Herder argued that the district court erred by failing to give his requested instruction with regards to possession, particularly that the presence of drugs in a car driven by the defendant was not alone sufficient to establish possession. The court concluded that the district court's charge to the jury "substantially covered" Herder's request.

As to his sentence, Herder argued it was procedurally unreasonable because the district court did not understand its ability to vary from the Guidelines at sentencing. The court agreed that the district court held that mistaken belief and, further, had imposed sentence before Herder had a chance to argue the matter. Finally, as to the forfeiture, the court formally adopted the "substantial connection" standard test to determine whether property is subject to forfeiture and concluded that the evidence was sufficient to demonstrate that connection in this case.

Judge Niemeyer dissented on the sentencing issue, arguing that the record did not show that the district court failed to consider or did not know it had the authority to deviate from the Guideline range.

Congrats to the EDVA Defender office on the win!